The Kerala State Electricity Board vs M.C. Jacob

Antony Dominic, J.—The respondent filed W.P.(C).No.4873/2010 claiming that his promotion to the post of Assistant Executive Engineer under the appellants should be given at least with effect from the date on which his juniors in the revised seniority list were given. This claim was accepted by the learned Single Judge, who, on facts found that one Sri.Rajayyan, a junior to the respondent in the revised seniority list, was given promotion as Assistant Executive Engineer earlier to him and therefore should be given promotion at least with effect from the date, on which, his immediate junior in the seniority list is given promotion. This judgment is challenged by the appellants before us.

Reading of the judgment shows that the learned Judge found that the junior to the appellant, Sri.Rajayyan was given promotion earlier to him and that therefore the respondent should be given promotion at least on a par with him. However, insofar as the promotion ordered to Sri.Rajayyan is concerned, in the writ appeal the appellants have stated thus in Ground ''C''.

C. Sri.Rajayyan the junior pointed out by the respondent was promoted as Asst. Executive Engineer on 31.10.1998 and he retired from service on 30.04.2001. Sri.Rajayyan was given promotion as per the then seniority list wherein the respondent was junior to him. It was after the retirement of Sri.Rajayyan that the reassignment was ordered and the process of such reassignment was completed on 27.06.2007. As per the revised seniority of Sub Engineers (Civil) the promotion already made in the cadre of Assistant Engineer (Civil) was reassigned and the respondent became senior to Sri.Rajayyan, Assistant Executive Engineer (Rtd.). Those promotees who were promoted in excess of their quota were reverted and placed below the respondent and they were treated as adhoc appointees. Since the adhoc appointees had already retired from service by the time the reassignment was ordered and the pension and other benefits were settled the appellants could neither realize the illegal benefits nor the amounts drawn during their service. The promotion of Sri.Rajayyan as Assistant Executive Engineer being an illegal one the respondent cannot claim such similar benefits.

Nothing has been placed before us to conclude that these averments contained in ground "C'' of the appeal memorandum are factually incorrect. A reading of this averment would show that by the time the seniority was revised and the said Sri.Rajayyan had become junior to the respondent, Sri.Rajayyan had already retired and it was therefore, according to the appellants, illegal promotion given to Sri.Rajayyan or the benefits enjoyed by him could not be recouped. It is the settled position of law that nobody can claim equality in illegality and the concept of equality is a positive one and not a negative one.

In this litigation, the claim of the respondent was for parity with Sri.Rajayyan and it is accepted by the learned Single Judge. It is evident that the promotion of Sri.Rajayyan itself was an illegal one and such a confession made by the appellants stands undisputed. In such circumstances, the conclusion of the learned Single Judge that the respondent is entitled to be treated on par with Sri.Rajayyan and promotion should be given to the respondent with effect from the date on which the person at serial No. 349 in the revised seniority list, his immediate junior, is given promotion is unsustainable. However, the learned counsel for the writ petitioner has a case that if the ratio 3:1 was properly implemented, he would have got promotion earlier. The appellants also accept that promotion was to be effected in 3:1 ratio between Degree and Diploma holders to the post of Assistant Executive Engineer. If so, the appellants are duty bound to maintain the ratio as provided in the Rules. Therefore, we clarify that, notwithstanding this judgment, if the respondent was entitled to any earlier promotion on the proper implementation of the ratio, that will be considered by the appellants. We therefore set aside the judgment of the learned Single Judge.

The writ appeal stands allowed as above.